Divorce and disputes over child custody and support are an unfortunate, difficult reality that many families face. The attorneys at Arkoosh Law Offices understand the stress and complex emotions that accompany the decision to move forward for the best interest of all the parties involved. We are well versed in divorce, child custody, child support, and modification, as well as preparing clients for family law mediation, and will be your guide and advocate throughout the process.
What Happens in a Family Law Case?
Pleadings
(1) The Petition. This document is the initial pleading that commences a family law case (i.e. divorce) or the initial pleading that commences a post-decree matter (i.e. child custody or support modification). The Summons and Petition are filed with the court and then formally served on the responding person. The Petition states the jurisdiction (what county has the power to hear the case), when and where the parties were married, whether there were any children born during the marriage, and whether there are any community property or debts that need divided.
(2) The Joint Restraining Orders. Upon filing of a Petition for Divorce, the Court automatically issues Joint Temporary Restraining Orders for property and children and an Order to Attend Focus on Children Classes, if there are minor children involved. The restraining order pertaining to property prevents either party from selling, transferring or concealing any property and money during the divorce. The restraining order pertaining to property prevents either party from selling, transferring or concealing any property.
(3) The Answer. Once a person has been served with a copy of the Summons, Petition, and Joint Restraining Orders, they have 21 days in which to either file an Answer or hire an attorney to appear and file an Answer on their behalf. The Respondent’s Answer will either admit or deny each allegation in the Petition and may or may not include a Counterclaim.
Scheduling Order
Once the Answer has been filed, the Judge will generally set a Scheduling Conference in order to meet with the attorneys and determine the case’s timeline, setting important deadlines for exchanging information, filing motions, attending mediation, and going to trial.
Mediation
It is quite common in Idaho for family law cases to be set for mediation before a trial date is assigned. Unless otherwise agreed or ordered, mediation consists of the Petitioner, Respondent, and a third-party mediator. The mediator works with the parties to facilitate communication and promote settlement.
Discovery
If mediation is not successful, written discovery and depositions usually follow. The Idaho Rules of Family Law Procedure provide standard discovery requests for family law cases. The questions request basic information about all parties, income information, evidence which tends to prove each party’s position, and exhibits and witnesses that will be presented if the case goes to trial. A deposition is another method for obtaining information from one party or another. In a deposition, the deposing attorney asks a witness questions. The depositions are usually conducted at the attorney’s office, rather than in a courtroom. However, a court reporter is present and provides a transcript of the deposition with each question and answer word-for-word.
Trial
If the case is not resolved in mediation or in settlement conferences, the case will go to trial. There are no jury trials in family law cases; the judge is the decision maker. At trial, each side is allowed to present evidence and call witnesses to testify regarding the community property and debts, child custody, and any other issues which may be involved in the divorce. Idaho is a community property state, meaning parties in a marriage are entitled to half of the community assets, and responsible for half of the community debt. There are exceptions to that rule, however, and courts can order an unequal distribution of the assets and debts for various reasons. The standard for child custody is the “best interest of the child.” Barring abuse, it is considered in the best interest of the children to have consistent, frequent contact with both parents.
Costs and Fees
Family law costs and fees may include hiring expert witnesses (business evaluator, child developmental specialist, etc.); the costs of a study, home visit, or other report ordered by the court (Child Custody Evaluation, Guardian ad Litem, Brief Focused Assessment, etc.); court costs (filing fee; parenting class); copy fees; deposition fees; computer legal research services; attorney fees; secretarial and paralegal fees; mediator fees; costs of obtaining records, and so on. Attorneys’ costs and fees can occasionally be ordered to be paid by the losing party in certain circumstances, however, it is never a guarantee.
Post-Decree Matters
The property and debt division of a divorce cannot be modified. However, the child custody and child support can be modified after the divorce is finalized. The basis for a modification action is a change in circumstances, such as an increase or decrease in income, a relocation by one or both parents, or an adjustment of visitation time.